2014 02 Incapacity

Saturday 1 March 2014

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London Borough of Redbridge v G (by her litigation friend, the Official Solicitor) and C (1) and F(2) [2014] EWHC 485 (COP) (Russell J): The local authority made applications under the Inherent Jurisdiction of the High Court in respect of an elderly woman. C and F had moved into her home, to provide care for her and to live there rent-free in return. G told a social worker that she felt obliged to change her will in exchange for the support C provided. Outwardly G seemed well cared for but she said that she was restricted in what she was allowed to do in her own home, shouted at and had been physically shaken. The court was satisfied that G was a vulnerable adult, made injunction orders in respect of C and F forbidding them from harassing or intimidating G or disposing of her possessions, and directed the obtaining of expert assessments of capacity. At the hearing on G’s capacity, the Official Solicitor submitted that G lacked capacity under MCA 2005, whilst ensuring that G’s views and any argument in support of those views were articulated. The hearing was in open court, with protection for the anonymity of private individuals. It was held that G lacked capacity under MCA 2005 in respect of contact with others, financial matters and the litigation. There would be a further hearing on G’s best interests. Click here for the judgment http://www.bailii.org/ew/cases/EWHC/COP/2014/485.html.

Westminster City Council v Manuela Sykes (by her RPR and litigation friend, RS) 24 February 2014 COP1238388T(Eldergill DJ): The local authority issued an application under s 21A MCA 2005 asking the court to review a standard authorisation of the deprivation of liberty of Ms Sykes, who was 89 and had dementia, whilst residing in a care home. The local authority was not prepared to fund a 24–hour package of care at her own home, and disputed that it would be a practicable alternative. Referring to the comments of Hedley J in Re: GC [2008] EWHC 3402 (Fam) that it would be wrong not to try a package of support “even with a degree of pessimism” and to the balance sheet approach to determining best interests in Re S [2003] 1 FLR 1235, and, following a full evaluation of all the relevant factors in the case, finding that the risks were acceptable, the court held that a one-month trial of home-based care in her own home was in Ms Sykes’ best interests. It was appropriate to lift the veil of anonymity for Ms Sykes, who wished to speak out about her case, and to permit the press to publish an old photograph of her from her days as a politician. Click here for the judgment http://www.bailii.org/ew/cases/EWHC/COP/2014/B9.html.

Re ES 21 February 2014 Case No. 12158153 (Senior Judge Lush): following the President’s practice guidance on transparency, the court published its judgment on a dispute as to who should act as deputy for ES. Referring to the “unofficial order of preference of persons who might be considered suitable for appointment” and to the circumstances in which a family member would not be appointed, the court decided to approach ES’s own solicitors to see if they would be willing to act. Click here for the judgment http://www.bailii.org/ew/cases/EWHC/COP/2014/B6.html.

R (on the application of Cornwall Council ) v SSHD, Wiltshire Council, South Gloucestershire Council and Somerset County Council [2014] EWCA Civ 12 (Elias LJ, Lewison LJ, Floyd LJ): the issue was in which local authority district the young man, Philip, was ordinarily resident. Philip was a severely disabled person lacking capacity. As a child, he had been provided with accommodation under s.20 Children Act 1989 by Wiltshire Council. Upon adulthood, Wiltshire Council continued to provide accommodation to him, under s.21 National Assistance Act 1948. At all times, Philip had lived with his foster parents in South Gloucestershire. Wiltshire Council asked the Secretary of State to determine where he was ordinarily resident, for the purposes of ascertaining on which local authority the s.21 duty lay. The Secretary of State found that he was ordinarily resident in Cornwall, where his parents lived, and where he visited for holidays. That decision was upheld at first-instance. On appeal, the Court of Appeal held that, applying the ordinary meaning of the phrase “ordinarily resident”, Philip could not be considered to be ordinarily resident in Cornwall, even though his parents lived there. The Secretary of State’s decision was wrong. The decision was quashed. The Court of Appeal held that there was only one conclusion properly open to the Secretary of State: that Philip’s place of ordinary residence was South Gloucestershire. Click here for the judgment.

Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) (Peter Jackson J): JB was a 62 woman who lacked capacity. The medical opinion was that she needed to have an amputation of her right leg. The Hospital Trust applied to the court for a declaration that JB lacked capacity, that it would be in her best interests to have a through-knee amputation and for her to be sedated if resisted. The hearing took place in public although a reporting restriction, preventing reporting or identification of JB’s names, personal details, her family members, the hospital, identity of the doctors and carers and any other material likely to lead to her identification, was in place. Having heard evidence from three doctors (two psychiatrists and the consultant surgeon), the Court concluded that JB had a disturbance in the functioning of her mind in the form of paranoid schizophrenia, but that it had not been established that she lacked capacity to make a decision about surgery. The evidence established that she did have the capacity to decide whether to undergo an amputation of whatever kind. Click here for the judgment.

The Public Guardian v JM [2014] EWHC B4 (COP)(Senior Judge Lush): Following the President’s practice guidance on transparency in the Court of Protection issued on 16 January 2014, the court permitted publication of its judgment revoking a Lasting Power of Attorney granted to JM in respect of DP, under s 22(4)(b) MCA 2005. Following a tip-off from Aviva that JM had requested transfer of a bond belonging to DP into his own name, an investigation by the Office of the Public Guardian revealed gifts to JM from DP’s assets and unexplained expenditure on DP’s accounts. JM had behaved in a way that contravened his authority and was not in DP’s best interests. Click here for the judgment http://www.bailii.org/ew/cases/EWHC/COP/2014/B4.html.

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